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Forfeiting History

Here’s a letter to the Wall Street Journal:

You properly denounce Philadelphia’s abominable practice of boosting its revenues by using civil forfeiture to seize properties of people convicted of minor criminal offenses (“What’s Yours Is Theirs,” Sept. 3).  Much blame for this sorry state of legal affairs belongs to the late Chief Justice William Rehnquist.

The 1996 case Bennis v. Michigan upheld, by a 5-4 vote, the civil seizure of John and Tina Bennis’s car after John pled guilty to having sex with a prostitute in the car.  Although John paid a fine for this criminal deed, the government nevertheless seized the car through civil forfeiture.  The Supreme Court ruled that Tina Bennis’s innocence of her husband’s criminal misdemeanor did not protect her from being stripped of her ownership share in the car.  Writing for the majority, Mr. Rehnquist reasoned that, because civil forfeiture was part of Anglo-American common law when the Bill of Rights was ratified, the Constitution allows such civil seizures.

But the Chief Justice’s history was criminally shoddy.  When the Bill of Rights was ratified, civil forfeiture was used to seize the properties only of wrongdoers who were physically outside of the jurisdiction of a state or federal criminal court.  A wrongdoer within a court’s jurisdiction could be stripped of property only upon being convicted of a crime – that is, only through criminal forfeiture.  Because the Bennises – as well as the victims of Philadelphia’s seizures – are obviously within the jurisdiction of the relevant criminal courts, a correct reading of legal history demands that Bennis be overturned and that civil forfeiture be used only if and when property owners cannot be brought into court to stand trial for their alleged criminal offenses.

Donald J. Boudreaux
Professor of Economics
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA  22030​

For more on the economics and the history of civil forfeiture, see this paper that Adam Pritchard and I wrote just a few months before the Bennis decision was handed down.

And don’t forget that the heroic Institute for Justice is now a leader in the fight against civil forfeiture.


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